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2019 DIGILAW 1291 (GAU)

Happy Chakraborty v. Jagatjyoti Sarma

2019-11-26

ACHINTYA MALLA BUJOR BARUA, AJAI LAMBA

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JUDGMENT : Achintya Malla Bujor Barua, J. Heard Mr. S.D. Purkayastha, learned counsel for the appellant as well as Mr. G.P. Bhowmik, learned senior counsel for the respondent. 2. The appellant Smti. Happy Chakraborty and the respondent Jagatjyoti Sarma were married on 29.01.2008 as per Hindu rites and ceremonies and out of the wedlock a son was born on 27.06.2012. The appellant wife was unhappy with the respondent husband since a few years of their marriage as he often disturbed her mental feelings by telling her to be unsmart and not good looking and he also used filthy language against her and also against her parents. Even at the time of the birth of their son, the respondent had not paid the required attention to the appellant nor he had borne the expenses of the delivery of the child. All the love and care to the appellant at the time of delivering the child, as well as meeting the financial expenses, were borne by her parents. 3. In the written statement filed in the Court of the Principal Judge of Family Court at Cachar, the respondent in paragraph 9 thereof stated as follows: "9. That the petitioner had maintained illicit with one of her boy friend namely Sri Arnab Dey whom she used to call from one of her mobile number and she had 4 (four) mobile Nos. of Arnab Dey as it is evident from her diary recorded by her the respondent learnt further about Sri Arnab Dey that Arnab's Mother was working as nurse in the Silchar Medical College and Hospital S. M. C. H where at the same time father of the petitioner was also served in the S.M.C.H. As laboratory technician therefore both of them and their family members have visiting terms between the two families and in such situation the intimacy grew between the petitioner and Sri Arnab Dey since prior to the marriage between the petitioner and respondent which the claindenstinely continued ever after marriage as aforesaid. That in the month of September, 2011 while the petitioner and respondent were residing in a rented house of Sri Biplab Bhattacharjee, Public School Road, Silchar, in absence of the respondent at home said Arnab Dey used to visit regularly in the rented house of the respondent and passed time with the petitioner alone, at said rented house, which fact was reported by the landlord of the respondent and his neighbours, thereafter the respondent asked the petitioner by stating aforesaid matters to her then she used to become furious and straight way replied to the respondent that she will lead her life as per her wish and will and respondent should not poke his nose to her very personal matters otherwise in future she will teach him such lesson which he cannot imagine thereafter the respondent brought the matter to the notice of his mother and father in-law but they also refused to intervene in the matter stating it is your conjugal matter so they have nothing to do." 4. In his evidence in chief before the Family Court the respondent stated as follows: "3. That subsequently it came to notice that the petitioner has been maintaining illicit relation with one of her boy friend Sri Arnab Dey when she used to call from one of her mobile (1) 9085213197 (2) 9401530580 (3) 9401848555 (4) 9435566052 and she had (4) four mobile number of Arnab Dey as it is evident from the diary as Exhibit I (exhibited in this case) as recorded by herself. 4. That it has been learnt from the petitioner that said Arnab Dey's mother was working as nurse in the Silchar Medical College and Hospital where at the same time father of the petitioner was also serving as Laboratory technician therefore both of them and their family members had visiting terms in such situation intimacy grew between them prior to the marriage between me and the petitioner, and which she continued clandenstinely even after our marriage. 5. 5. That in the month of September, 2011 while I and the petitioner were residing on rent in the house of Sri Biplab Bhattacharjee at Public School Road, Silchar and in absence of me at home said Arnab Dey used to visit regularly in the said rented house and passed time with the petitioner alone which fact was reported to me by said landlord Sri Biplab Bhattacharjee, thereafter I had asked the petitioner by stating the aforesaid matter to the petitioner then she used to become furious and straight way replied to me that she will lead her life as per her wish and will and I should not poke my nose to her very personal matters, otherwise in future she will teach me such a lesson, I cannot imagine thereafter I had brought the matter to the notice of my mother and father in law but they also refused to intervene the matter stating it is my conjugal matter so they have nothing to do. 5. The learned Family Court in its judgment dated 25.05.2018 arrived at a conclusion that although the respondent had made allegation that the appellant was in a relationship with one Arnab Dey, which can be revealed from the diary which was exhibited as Exhibit-I, but on perusal of the diary it was found that there was nothing in writing of the appellant which goes to show that she had any close relationship with the person. It was also concluded that merely because the appellant had been ringing up someone, it by itself does not mean that she had any extra marital affair with the person concerned. Accordingly, learned Court concluded that no cruelty could be established by the appellant so as to justify a decree of divorce. 6. Being aggrieved by the judgment dated 25.05.2018 of the learned Principal Judge, Family Court, Cachar in F.C.(Civil) Case No. 67/2013 the present appeal has been preferred by the appellant. 7. The core ground urged upon in the appeal is that the respondent had clearly stated in his written statement as well as in his evidence in chief that the appellant was indulging in an illicit relationship with another person Arnab Dey, which itself is a cruelty on his part. There was no further requirement for the Court to arrive at any conclusion whether the allegations were true or false. 8. For the purpose, Mr. There was no further requirement for the Court to arrive at any conclusion whether the allegations were true or false. 8. For the purpose, Mr. S.D. Purkayastha learned counsel for the appellant relies upon the pronouncement of the Supreme Court in Vijay Kumar Ramachandra Bhate Vs. Neela Vijay Kumar Bhate, (2003) 6 SCC 334 , wherein, in paragraph 7 and 11 it had been held that: "7. The question that requires to be answered first is as to whether the averments, accusations and character assassination of the wife by the appellant husband in the written statement constitutes mental cruelty for sustaining the claim for divorce under Section 13(1) (i-a) of the Act. The position of law in this regard has come to be well settled and declared that leveling disgusting accusations of unchastity and indecent familiarity with a person outside wedlock and allegations of extra marital relationship is a grave assault on the character, honour, reputation, status as well as the health of the wife. Such aspersions of perfidiousness attributed to the wife, viewed in the context of an educated Indian wife and judged by Indian conditions and standards would amount to worst form of insult and cruelty, sufficient by itself to substantiate cruelty in law, warranting the claim of the wife being allowed. That such allegations made in the written statement or suggested in the course of examination and by way of cross-examination satisfy the requirement of law has also come to be firmly laid down by this Court. On going through the relevant portions of such allegations, we find that no exception could be taken to the findings recorded by the Family Court as well as the High Court. We find that they are of such quality, magnitude and consequence as to cause mental pain, agony and suffering amounting to the reformulated concept of cruelty in matrimonial law causing profound and lasting disruption and driving the wife to feel deeply hurt and reasonably apprehend that it would be dangerous for her to live with a husband who was taunting her like that and rendered the maintenance of matrimonial home impossible. 11. 11. .......The allegations leveled and the incidents enumerated in the case on hand, apart from they being per se cruel in nature, on their own also constitute an admission of the fact that for quite some time past the husband had been persistently indulging in them, unrelented and unmindful of its impact..... " 9. When we go through the contents of the written statement and the evidence in chief of the respondent, we find that there were allegations against the character of the appellant. By following the proposition laid down by the Supreme Court, the same under the law would constitute a mental cruelty. 10. Mr. G.P. Bhowmik, learned senior counsel for the respondent raises a contention that as no such allegation of cruelty was made by the appellant in her pleadings before the Family Court, therefore, she cannot rely only upon the pleadings of the respondent in his written statement and his deposition in examination in chief to sustain the allegation of cruelty. 11. According to Mr. G.P. Bhowmik, learned senior counsel, the burden to prove the existence of cruelty was on the appellant and without independently proving the same, cannot for the purpose, solely rely upon the pleadings and evidence of the respondent. 12. We have carefully considered submission of the learned senior counsel, but from paragraph 4 of the judgment of the Supreme Court in Vijay Kumar Ramachandra Bhate (supra), it is taken note of that same contention was also raised by the learned senior counsel for the respondent husband in the Supreme Court. But inspite of such contention being raised, the Supreme Court took the view that if the averments made in the written statement as well as in evidence in chief leads to an accusation and character assassination of the wife, the same would constitute a mental cruelty. 13. In view of the approach taken by Supreme Court in this respect, we are unable to accept the contention of the Mr. G.P. Bhowmik, learned senior counsel. 14. As cruelty by the respondent writ large from the accusation and character assassination made by him in the written statement as well as in his evidence in chief, by following the proposition laid down by the Supreme Court in Vijay Kumar Ramachandra Bhate (supra) we are of the view that the conduct of the respondent amounts to a mental cruelty being inflicted upon the appellant. 15. 15. Accordingly the judgment and order dated 25.05.2018 of the learned Principal Judge, Family Court, Cachar at Silchar in F.C.(Civil) Case No. 67/2013 is set aside. 16. The conduct of the husband being amounting to a cruelty on the appellant wife as indicated above, we allow her petition under Section 13 (1)(ia) of the Hindu Marriage Act, 1955 and order for a dissolution of their marriage on the ground of cruelty. 17. The appeal accordingly stands allowed. Send back the LCR.